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Supreme Court 3 February 2012

Director of Public Prosecutions (NSW) v Elskaf

[2012] NSWSC 21

Traffic & driving
CRIMINAL LAW DENIAL OF PROCEDURAL FAIRNESS

Citation: Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Court: Supreme Court of NSW
Date: 3 February 2012
Judge: Garling J

Background

At 2.15am on 14 November 2010, police stopped a man driving a black Ferrari in Kings Cross after officers observed him turn left through a red traffic signal at the intersection of Greenknowe Avenue and Macleay Street. He was issued a penalty notice for $344 under Rule 60 of the Road Rules 2008. He declined to pay and elected to defend the proceedings in the Local Court.

The matter was heard by Magistrate O'Shane at the Downing Centre on 5 August 2011. The prosecution intended to call four witnesses, but the Magistrate restricted the hearing to two police officers. After those officers gave evidence and were cross-examined, the Magistrate declared herself satisfied that no prima facie case had been established and dismissed the proceedings. She went further, finding the prosecution had been initiated without reasonable cause or in bad faith, and awarded costs of $1,650 against the prosecution under s 214 of the Criminal Procedure Act 1986.

The Director of Public Prosecutions appealed to the Supreme Court under s 56 of the Crimes (Appeal and Review) Act 2001, seeking to have the dismissal set aside and the matter remitted for rehearing before a different magistrate.

  • Whether the Magistrate denied the prosecution procedural fairness by refusing to allow it to call all the witnesses it wished to call
  • Whether the Magistrate erred in law in ruling that the prosecution had not established a prima facie case on the evidence before her
  • Whether the Magistrate failed to give adequate reasons for her ruling
  • What relief was available under the Crimes (Appeal and Review) Act 2001 and, separately, under the Supreme Court Act 1970

Decision

Denial of procedural fairness. Garling J found that the Magistrate had peremptorily refused to allow the prosecution to call two of its four intended witnesses before any of them had given evidence. The basis for excluding those witnesses had not been properly established. The prosecution had submitted their evidence was relevant, but the Magistrate terminated the discussion and restricted the hearing to two officers. This constituted a denial of procedural fairness and was an error of law.

Error in ruling on prima facie case. The two police officers who did give evidence each testified to observing the Ferrari make the unlawful left turn. Both rejected the suggestion in cross-examination that they had the wrong vehicle. Garling J held that this evidence, if accepted, was capable of establishing each element of the offence. The test for whether a prima facie case exists is not whether the tribunal of fact believes the evidence, but whether there is evidence upon which a reasonable tribunal could act. The Magistrate had conflated the question of whether to accept the evidence with the separate and prior question of whether the evidence established a prima facie case. That was an error of law.

Failure to give adequate reasons. The Magistrate's reasons amounted to no more than a bare statement that she did not accept the officers' evidence, without any analysis of why that was so. Garling J confirmed that a judicial officer is not required to give exhaustive reasons in every case, but must say enough to reveal the reasoning actually applied. Bare assertions of unreliability, unsupported by analysis, do not discharge that obligation. The failure to give adequate reasons was itself an independent error of law.

Relief and the costs order. Garling J noted that s 59 of the Crimes (Appeal and Review) Act provided no pathway to set aside a costs order made under s 214 of the Criminal Procedure Act. However, once the substantive appeal was upheld, the costs order was quashed by exercising the Supreme Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970. The matter was remitted to a different magistrate, both because the existing Magistrate had made legal errors and because the strength of her expressed views about the officers' credibility would give rise to a reasonable apprehension of bias on any rehearing.

Orders Made

  • The appeal was allowed.
  • The order made on 5 August 2011 dismissing the proceedings was set aside.
  • The order made on 5 August 2011 with respect to costs was quashed.
  • The proceedings were remitted to the Local Court to be dealt with by a magistrate other than O'Shane LCM.
  • The first defendant was ordered to pay the plaintiff's costs.
  • The first defendant was to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

Key Takeaways

  • The test for a prima facie case in summary proceedings requires a court to ask whether there is evidence upon which a reasonable tribunal of fact could act, not whether the presiding magistrate personally accepts that evidence. Garling J held that conflating those two questions is an error of law.
  • A magistrate's refusal to permit the prosecution to call witnesses whose relevance the prosecution asserts, without proper foundation for exclusion, can constitute a denial of procedural fairness amounting to an error of law.
  • Adequate reasons require more than bare assertions that witness evidence is unreliable. A judicial officer must identify enough of the reasoning process to reveal why the evidence was rejected.
  • Where a substantive appeal under the Crimes (Appeal and Review) Act 2001 is upheld, a costs order that falls outside the scope of that Act may still be quashed through the Supreme Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970.
  • Strong adverse credibility findings made by a magistrate at first instance can, in appropriate circumstances, give rise to a reasonable apprehension of bias sufficient to require the matter to be heard by a different magistrate on remittal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59
- Criminal Procedure Act 1986 (NSW), s 214
- Evidence Act 1995 (NSW)
- Road Rules 2008, Rule 60
- Supreme Court Act 1970 (NSW), s 69
- Suitors' Fund Act 1951 (NSW)

Cases
- Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; 122 A Crim R 166
- Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653
- Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
- Doney v The Queen [1990] HCA 51; 171 CLR 207
- DPP (Cth) v Neamati [2007] NSWSC 746
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Haw Tua Tau v Public Prosecutor [1982] 1 AC 136
- Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288
- May v O'Sullivan [1955] HCA 38; 92 CLR 654
- Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
- R v Prasad (1979) 23 SASR 161
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247